JUDGMENT
H.N. Sarma, J.
1. The appellant, Sri Dhiren Baruah having been convicted under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/-, in default, further rigorous imprisonment for two months vide order dated 23.4.2003 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 131(S-S) of 2001, has preferred this criminal appeal from jail.
2. We have heard Mr. K.K. Gupta, learned Amicus Curiae on behalf of the appellant and Ms. A. Begum, learned Public Prosecutor representing the State.
3. The prosecution case in brief is that-
An FIR was lodged by one Dharmeswar Baruah, P.W. 1 on 12.7.2001 alleging that his nephew Sri Dhiren Baruah assaulted his wife, Smt. Junu Baruah (deceased) with iron rod, bamboo lathi and also strangulating her on the night of 11.7.2001 as a result of which she died on 12.7.2001 at about 8.00 a.m. On the basis of such information, Cherakapar Police Outpost registered the Cherakapar O.P.G.D. No. 182/01 and forwarded the same to Sivasagar Police Station wherein a case being Sivasagar P.S. Case No. 189/2001 under Section 302 I.P.C. was registered.
4. During the course of investigation, the Investigating Officer, P.W. 9 visited the place of occurrence and made in-quest over the body of the deceased and thereafter deadbody was sent to Sivasagar Civil Hospital for conducting autopsy. The Investigating Officer also arrested the accused, on being apprehended by the villager. The Investigating Officer recorded the statements of witnesses and also recovered the offending weapons which were used in assaulting the deceased and seized vide Ext. 3.
5. After completion of the investigation, the Investigating Officer having found a prima-facie case, filed chargesheet against the accused under Section 302 I.P.C. and forwarded to the Court for trial. The case being exclusively triable by the Court of Sessions, the learned Magistrate, 1st Class, Sivasagar vide order dated 14.9.2001 forwarded the case to the Sessions Court for trial.
6. The learned Sessions Judge on the basis of the statements made under Section 173 Cr.P.C. and upon hearing both the parties framed charges against the accused under Section 302 I.P.C. vide order dated 20.6.2002 and the same was read over to the accused to which the accused pleaded not guilty and claimed to be tried.
7. During the course of trial, prosecution examined as many as 9 witnesses including the informant P.W. 1, the Doctor-P.W. 8 and P.W. 9 the Investigating Officer.
8. After completion of the examination of the prosecution witnesses, the statement of the accused under Section 313 Cr.P.C. was recorded and the circumstances that were brought to light by the prosecution witnesses were put before the accused to which the accused denied the same. At the end of trial, the learned Sessions Judge after perusal of the materials available on record and hearing both the parties found that the prosecution has proved the offence of murder against the appellant beyond all reasonable doubt and accordingly convicted and sentenced the appellant in the aforesaid manner.
9. Now, let us examine to what extent the prosecution has proved the acquisitions levelled against the accused during the course of trial.
10. Admittedly, in the instant case, there is no eye-witness and the entire prosecution case is based on circumstantial evidence.
11. P.W. 1, Sri Dharmeswar Baruah, the informant in his deposition stated inter-alia that at about 8.00 a.m. of the day of occurrence the accused came and reported that his wife had died. He stated that the accused was in the habit of beating his wife in inebriated condition. On receiving the news, P. W. 1 went straightway to meet the Gaonbura, the village headman, to report the matter but Gaonbura declined to interfere and he went to the house of Titon Baruah and they prepared a written complain/FIR wherein he put his signature. Ext. 1 is the said FIR and Ext. 1(1) is his signature. He further stated that the contents of the FIR was correct. He also stated that the Investigating Officer held inquest on the dead body of the deceased inside the house wherein he put his signature. Ext. 2 is the inquest report and Ext. 2(1) is his signature. Thereafter, the Investigating Officer sent the dead body to Sivasagar Civil Hospital for autopsy. He further stated that Investigating Officer has seized one iron pipe, one iron shovel from the house of the accused. Ext. 3 is the seizure memo and Ext. 3(1) is his signature put thereon. He stated that mother of the accused was driven out few days prior to the occurrence by the accused.
In cross, P.W. 1 stated that accused was living with his mother, wife and 3 children, the accused used to come home late night taking liquor and accused was a habitual drunker. He further stated that the deceased was also having slight mental disorder and sometime she used to go out alone. He further stated that the accused used to beat his wife since after their marriage. He stated that son of the accused brought out the weapons and produced the same before the Investigating Officer.
12. P.W. 2, Sri Nabajit Baruah, son of the accused and deceased, who was aged about 10 years at the time of deposition. The learned trial Judge tested and examined his capacity to depose. This witness narrated a different story by stating that on the day of occurrence his father had gone to bring back his grandmother. He stated that her mother asked him food and after taking meal he saw that his mother hitting her head against a wall and after some time she died. At that stage P.W. 2 was declared hostile.
In cross, P.W. 2 admitted that he was interrogated by police and he gave his statement before the Investigating Officer. He denied the fact that he ever stated before the Investigating Officer that whole of the night his father was beating his mother giving fatal blows, kicks and also assaulted her with lathi, iron pipe and shovel. He also denied that he stated before the Investigating Officer that in the morning also his mother was beaten by the accused and immediately she died. He dined the statement that he deposed before the Investigating Officer that few days earlier his father drove out his grandmother after beating her. However, P. W. 2 admitted the fact that the Investigating Officer seized one iron pipe and a shovel from their house. He also denied that he ever deposed before the Investigating Officer about the participation of the accused in commission of the offence and after committing the offence the accused fled away. He also denied that he stated before his uncle and other villagers that the accused had beaten and caused death of his mother. In cross, he further stated that Sri Dharmeswar Baruah, P.W. 1 and other two persons namely, Huntu and Baba live nearby their house.
13. P.W. 3, Smt. Bijaya Baruah, the mother of the accused in her deposition in-chief stated that on the relevant day she was away at her sister’s house at Lakhimi Nagar and after staying there for 4/5 days she returned home on the day of the occurrence. She further stated that her grandson, P.W. 2 told her that his mother had died by striking her head against the wall. At this stage she was declare hostile.
In cross, she stated inter-alia that police came after getting information in the afternoon and she was interrogated. She denied that she ever stated before the Investigating Officer that she was driven away from the house by her son, the accused and also that she came to know from her grand son that the accused had assaulted his wife and that she did not state before the Investigating Officer that the accused was in the habit of beating his wife. She further denied the fact that she ever stated before the Investigating Officer that her son was suspecting the fidelity of his wife and she also stated that the deceased was actually not of such bad character. In cross, she stated that she did not know how the wife of the accused died. She further stated that the deceased was a mentally sick woman and on many occasions she was found naked.
14. P.W. 4, Dimbeswar Chetia is a co-villager of the accused. This evidence of the witness is not much important for the prosecution as much as he is the neighbour and not an eye-witness nor much know about the prosecution case. Getting the news about the murder of the deceased by the accused from the villagers, he rushed to the place of occurrence and found that the police is investigating the case. He along with the villagers brought out the dead body from inside the house. Police examined and prepared the inquest report. Ext. 2 is the inquest report wherein he put his signature as Ext. 2(2). He further stated that he saw one wound on the back of the deceased.
In cross also he reiterated that he saw one wound on the back of the dead body and could not say how the deceased received the injury.
15. P.W. 5, Niranjan Baruah is the Gaonbura of the village. P.W. 5 in his deposition admitted that P.W. 1 informed him about the death of the deceased and on his advise the information was lodged with the police. He also stated that when he visited the place of occurrence the accused was not found and P.W. 1 told him that accused had killed his wife. Police came and investigated the case and during his presence, villagers brought out the deadbody from inside the house and police performed inquest over the deadbody and he saw wounds on many parts of the deadbody. Ext. 2 is the inquest report and wherein he put his signature as Ext. 2(3). He further stated that after sometime the accused was apprehended by the villager and handed over to the police. He also stated that earlier he got complaints of quarrel between the accused and the deceased and accused had driven out his mother from home. He also stated that the son of the accused produced one shovel and iron pipe before the Investigating Officer which were seized in his presence. Ext. 3 is the seizure memo and vide Ext/3(2) is his signature. Material Exts. 1 and 2 are the seized weapons. He further stated that son of the accused told the Investigating Officer that those weapons were used by the accused in the assault.
16. P.W. 6, Shantanu Baruah, is a co-villager and neighbour of the accused. He stated that when he saw that few people gathered in the house of the accused, he went there and he noticed that police was investigating the case and conducting inquest over the dead body of the accused wherein he put his signature as Ext. 2(4). He further stated that initially accused was absconding from his house and later on the accused was apprehended by the villagers almost at dusk. Police seized the articles and Ext. 3(3) is his signature in such seizure memo.
In cross, he stated that he did not hear any kind of difference or quarrel between the accused and his wife.
17. P.W. 7, Titu Baruah is also a co-villager and neighbour of the accused. He stated that accused is his cousin. He further deposed that accused told him that he had killed his wife and the accused also reported about the incident to the villagers. On getting the information he went to the house of the Gaonbura and reported the incident. As per advise of Gaonbura he sent information to the police through his father Dharmeswar Baruah, P.W. 1 and out of fear he did not go to the place of occurrence. He further stated that when the accused was hiding in the bushes behind his house, he was apprehended by him and other villagers and was handed over to the police.
In cross, he stated that he heard that the deceased, the wife was a mentally sick person.
18. P.W. 8, Dr. Ranjit Kumar Hazarika, who caused autopsy over the dead body, in his examination, found the following injuries:
External Injuries:
i) One haematoma over the right parietal region of the scalp,
ii) One lacerated injury of the size 1″1/4 x ” x 1/4″ over the left molar region (check bone),
iii) Ecchoymosis were present over the face, back and loine.
On dissection fluid blood amounting 1.5 litre was seen in the peritoneal cavity. The spleen was ruptured. Liver and kidneys were found pale. Congestions were seen in the Oementium and intestine. Lungs wire found healthy. Heart was found pale. Chambers were found empty.
There was fracture of the 10th rib on the left side.
The Doctor after the examination over the dead body expressed his opinion as under:
Opinion:
In my opinion, the death was caused due to shock and haemorrhage as a result of the spleen rupture which was ante-mortem in nature. In my opinion, the injuries might have been caused by blunt weapon like lathi. The blunt side of shovel or iron rod. Like Mat. Exts. 1 & 2, can also be used in the crime. The spleen injury was fatal and it was sufficient to cause the death in the ordinary course of nature since it had ruptured the spleen.
19. P.W. 9, the Investigating Officer, Md. Amirul Hussain in his deposition stated that on 12.7.01 while he was the in-charge of the Cherakapar Police Outpost received an FIR filed by Dharmeswar Baruah, P.W. 1 alleging that the accused had assaulted his wife with an iron rod resulting to her death on the previous night. He recorded the information vide Cherakapar O.P.G.D. Entry No. 182 dtd. 12.7.01 and at about 3.00 p.m. the FIR was forwarded to Sivasagar Police Station wherein the Sivasagar P.S. Case No. 189/01 was registered under Section 302 IPC. Ext. 1 is the FIR and wherein he put his signature with endorsement as Ext. 1(2). He took up the investigation and visited the place of occurrence and found that offence was committed in the bedroom of the accused and he held inquest over the dead body in presence of the witnesses. Ext. 2 is the inquest report and vide Ext. 2(5) he put his signature thereon. He also seized one iron pipe and one shovel that lying inside the room. He deposed that those weapons were stated to be used in the crime as per the version of P.W. 2. Ext. 3 is the seizure list and Ext. 3(4) is his signature. Seized weapons are Material Exts. 1 & 2. He also drew a sketch map of the place of occurrence. Ext. 5 is the said sketch map and Ext. 5(1) is his signature. Thereafter, he recorded the statements of other witnesses. The accused was not found in his house. Accused was later on apprehended by the villagers and handed over to him. After interrogating the accused, he was arrested and forwarded to the court. The dead body was sent to the Sivasagar Civil Hospital for autopsy. After completion of investigation, he submitted charge-sheet against the accused under Section 3021.P.C. on 2.8.01.
On being questioned to him he stated that P.W. 2 stated before him that accused had beaten him mother, the deceased by giving fist blows, kicks and also beat her with lathi, iron rod and shovel whole the night and also in the morning. P.W. 2 also stated before him that few days earlier the accused had driven out his grand mother after beating her.
The Investigating Officer also deposed that P.W. 3, the mother of the accused stated before him that she was driven out by the accused few days earlier to the incident and that her grand-son told her that the accused had assaulted the deceased with iron rod and lathi. P.W. 3 also stated before him that the accused used to beat his wife occasionally, suspecting her fidelity.
In cross, the Investigating Officer told that the incident took place in the night of 11.7.01 but the women died on 12.7.01 at about 8.00 a.m. During investigation he came to know that the deceased was killed by the accused suspecting her chastity i.e., illicit relations with other persons.
20. The circumstances that appeared against the accused as per version of the prosecution witnesses were put to the accused in his examination under Section 313 Cr.P.C. and in answering the Question No. 3 relating to the beating of the deceased by the accused, the accused denied the fact and stated that only on the relevant night he beat the deceased. In response to the Question No. 7, the accused answered that he did not assault the deceased with an intention to kill. He also replied that he had beaten his wife with bamboo stick suspecting the chastity of the deceased, because he saw one person going out from the backside of their house when he returned home at 10.00 p.m. on the relevant day.
21. On the basis of the above set of evidence and considering the materials available on record, now, it is to be scrutinized as to whether the prosecution has been able to prove the prosecution case beyond reasonable doubt so as to secure conviction of the appellant under Section 302 I.P.C. by way of circumstantial evidence.
22. Admittedly there was no eye witness of the occurrence. The only eye witness was the son of the accused. The pointed prosecution case is that accused assaulted his wife by fist kick, iron rod and shovel. In medical evidence, the Doctor, P.W. 8 deposed that there were five injuries on the body of the deceased and spin was found to be ruptured and kidneys were found pale. The spleen got severe injuries. The accused admitted that he assaulted the wife on the night of occurrence with bamboo stick. There was no other evidence on record that the deceased was beaten by any other materials. The accused has also stated before the P.W. 7 that he killed his wife which was a nature of’ extra judicial confession’ which also lend support from the admission of the accused that he assaulted his wife by bamboo lathi on the night of occurrence.
23. After the death of the victim the accused was found to be absconded but he was apprehended by the villagers including P.W. 7 and handed over to the police.
24. The story narrated by P.W. 2 the son of the accused that his mother (deceased) expired as a result of hitting her head against the wall on the night of occurrence is difficult to belief and there is no corroborative evidence to that effect. P.W. 2 resisted him from his statement made before the Investigating Officer which was proved to be contradictory one and it was also proved in accordance with law under Section 162 Cr.P.C. In fact, the different story given by the P.W. 2 has not been supported by the accused himself in his statement recorded under Section 313 Cr.P.C. It is no doubt true that the statement given under Section 313 Cr.P.C. is not of the same standard like of the prosecution evidence given by the same person and it cannot be altogether ignored as held by the Apex Court in the case of State of U.P. v. Lakhmi .
25. P.W. 1 is the uncle of the deceased and is a most distinterested person who lodged the FIR and we do not find any reason to disbelief him. P.W. 4 is an employee of the A.S.T.C. and also a neighbour of the accused. P.W. 5 is the Gaonbura of the village as well as P.W. 7 is the cousin of the accused and they are all independent witnesses. No cogent reason could be shown by the defence as to why their evidence should not be believed. We find that from the evidence of the aforesaid witnesses, who are most natural witnesses, one is corroborative to other. The medical report also indicated that the nature of assault caused by the accused upon the deceased and the offending weapons were recovered as per Material exhibits.
26. Aforesaid narration of the facts disclose that prosecution has been able to prove the chain of circumstances leading to the killing of the deceased by the accused without any breach in the chain. As such, upon careful analysis of the prosecution witnesses and the relevant materials available on record, we have no hesitation to hold that accused has caused the death of his wife assaulting her on the fateful night.
27. Now, after coming to the aforesaid conclusion about the killing of the deceased by the accused, we have considered the next question i.e., whether the aforesaid killing of the deceased amounts to culpable homicide amounting to murder. It has come out from the statement of the accused in his examination under Section 313 Cr.P.C. that he had admitted to have assaulted the deceased with bamboo lathi and he stated that he did not assault to an intention to kill her. No such intention of the accused to kill his wife can also be gathered from the fact that the accused, if had was such an intention to kill his wife, he could have finished her life within a short span of time, since the deceased was staying along with him under the same roof. But that was not done by him. This important circumstances also indicative of the fact that the accused had no intention to kill his wife and during his examination Under Section 313 Cr.P.C. he answered in such a manner when the question was put to him.
28. In view of the above discussion, we find that culpable homicide caused by the accused upon the deceased would not attract “murder” as defined under Section 299 I.P.C. Accordingly, we find the accused guilty under Section 304 Part-II I.P.C. We accordingly sentenced him to undergo imprisonment for 10 (ten) years.
29. With the aforesaid modification, this appeal stands partly allowed.
30. Send down the LCR forthwith.
31. Before parting with the record, we are inclined to express our total dissatisfaction in the manner which Mr. K.K. Gupta, learned Amicus Curiae has assisted the Court in this case. On 30.10.03, Mr. Gupta was appointed as Amicus Curiae in this case to assist the Court. Initially, when the matter was called upon for hearing on 10.9.07, the learned Counsel was found absent. This Court had no other alternative but to adjourn the matter. On 11.9.07, the next date fixed for hearing also, the learned Counsel did not appear. On 17.9.07, the learned Amicus Curiae appeared and he was heard at length and on his request the case was kept part-heard to provide him an opportunity to cite certain cases on the is-sue involved as prayed for. When the matter was called upon for final hearing today, the learned Amicus Curiae is not only found to be absent but when we started dictating the order, to our utter surprise, a junior of Mr. Gupta, during the midst of dictation, intimated the Court that Mr. Gupta did not find any relevant case to the issue involved and she was instructed to inform the Court. However, today, Mr. Gupta did not appear before the Court even for once during the hearing of the case.
32. It is a very sorry state of affairs and this Court is of the opinion that the Bar Council as well as Bar Association should come forward to take some remedial measures so that justice do not suffer at the hands of Amicus Curiae appointed by the Court.
33 Let a copy of this Judgment be served v upon the President of the High Court Bar Association and the Chairman of the North East Bar Council.